The idea of copying a successful game concept and profiting off of your own version is practically as old as the game industry itself—just look at the countless Pong clones released in the wake of the Atari original (which itself may have been copied from another source... but that's another story). The idea of game copying has gained added attention in recent weeks, though, as some high-profile social game companies have released games some say are a little too similar to their existing inspirations.

Tiny Tower maker NimbleBit and Bingo Blitz maker Buffalo Studios both took issue with overly familiar titles recently released by Zynga, making their complaints known through largeinfographics that show near-identical side-by-side screenshots. But Triple Town developer Spry Fox went a step further, actually filing a lawsuit (PDF) against Yeti Town developer 6waves Lolapps, saying the latter company "unabashedly" cloned its popular social game. The lawsuit takes the matter away from the nebulous moral and ethical questions of what constitutes an "original" game idea to the codified legal realm of guilt and innocence. Yet the nature of copyright law as it applies to games, and the existing case law in the area, suggests Spry Fox has an uphill battle in protecting Triple Town in court.

The expression vs. the idea

"Whenever you have a copyright, you're protecting the expression, not the idea," says Mark Methenitis, a Dallas attorney and author of the Law of the Game blog. "It's a line a lot of people have a very hard time with, especially when you get into games."

To explain the difference, Methenitis gave the analogy of a book, where a single word or sentence probably isn't copyrightable, but a paragraph or chapter could probably be protected (and the entire book is obviously protectable). "When you're looking at a game, what's a word versus what's a sentence versus what's a chapter versus what's a whole book?" he asked rhetorically.

Short of cases where one company copies source code wholesale from another game, courts have pretty wide discretion in deciding the answer to that question, and Methenitis says they tend to take an expansive view of what design features are unprotectable portions common to many games. "The elements that get copied over and over and over are almost more elements of the genre, not necessarily stealing from game one to game two, and we've had the copying of mechanics to that degree for years," Methenitis said. In other words, you can't copyright pressing the A button to jump.

How deep can this copying of game design elements legally go? Spry Fox notes in its lawsuit that Yeti Town's gameplay structure mimics that of Triple Town right down to the virtual currency prices charged for similar items. Yet even this might not be enough to prove infringement.

"If it was completely identical—the names were identical, the graphics were almost identical, then maybe... but really it's just one small element of the overall copyrighted work," Methenitis argues. "So you'd say 'Well, maybe the tech tree has the suggestion of infringement, but these other elements are not suggesting infringement based on their differences from the other work.'" Still, he said it will be interesting to see what the court thinks of this similarity.

Any resemblance to Street Fighter II's Ken and Chun-Li in this screenshot from Data East's Fighter's History are, legally, practically meaningless

Where's the actual expression?

A developer's best chance to make a copyright claim against a cloned game comes through the more traditionally creative elements of the game—things like character models, dialogue, or major story elements. But even if those kinds of elements are incredibly similar, it can be very hard to make an infringement case.

Take Fighter's History, a 1993 fighting game that shamelessly mirrored elements of Capcom's Street Fighter II such as character designs, move sets and even the controller motions needed to perform common moves. Capcom sued Data East for copyright infringement in 1994, and while the court found that some of Data East's characters and moves were "substantially similar" to those in Street Fighter II, they weren't quite identical enough to be infringing. Moreover, the court said that Capcom's iconic Street Fighter characters were themselves based on stereotypical characters and fighting techniques that Capcom couldn't lay a copyright claim to.

Simple social and puzzle games are at even more of a disadvantage on this score, Methenitis says, because there's very little creative expression that differentiates the games from one another. "Looking at some of these games, if they had more meat to them, then I think there might be more of a claim because there are more of these things being copied," he said. "But the more simplistic they get... once you've found the few creative elements that exist on top of the social sub-genre, there just isn't that much left that is copyrightable.

"If you went and grabbed Final Fantasy VI and redrew the whole thing, retold the exact same story, tweaked the dialogue a bit with basically all the same characters, that suggests itself to be more like copyright infringement because there are more elements to the work as a whole that are being taken," he added. "[With social games] there isn't a lot of depth to start with, so figuring out where to draw the line on what's the genre and what's the theme, versus what's this game's specific plot, isn't nearly as clear."

Patents and other protections

So is there anything an up-and-coming developer can do to protect its hard work from being outright copied by a larger competitor? One option is filing for a patent, which can be much easier to defend in court if someone infringes on your ideas. In 2004, Sega used a patent it had for the design for Crazy Taxi to successfully sue the makers of The Simpsons: Road Rage for basically throwing the popular animated characters into the same exact game.

But while copyrights are granted to creative works automatically, getting a patent means going through the arduous process of filing with the Patent Office and proving that your work is wholly original. "At this point that would probably mean creating an entirely new social subgenre that wouldn't be invalidated by prior art—the games that are already existing in this space," Methenitis says.

Perhaps a better way for developers to protect themselves from game cloning doesn't involve the legal system at all, but just requires beating the cloners to the punch. "The only way to really stay ahead of this is to be the most innovative kid on the block," Methenitis says. "If you're the one that's constantly coming up with the newer and better ideas, people will play your game and not their game. There's no real way to copy innovation as it happens, you can only do it after the fact, so if you can always stay a step ahead you will have an advantage."

Kyle Orland
Kyle is the Senior Gaming Editor at Ars Technica, specializing in video game hardware and software. He has journalism and computer science degrees from University of Maryland. He is based in the Washington, DC area. Emailkyle.orland@arstechnica.com//Twitter@KyleOrl

There is a big difference in the Triple Town/Yeti Town case though. The makers of Yeti Town actually had access to all of the source code of Triple Town. Originally, they were going to handle the porting/publishing job from one platform to another (from Facebook to iOS IIRC). Then suddenly they break off all negotiations and suddenly release a game that is little more than a sprite swap. As the story mentions, the items in the in-game store even have all of the same prices in the game currency. I would bet a very large amount of money that the underlying game code is a line by line ripoff. I bet they even left the commented code in there.

"If you're the one that's constantly coming up with the newer and better ideas, people will play your game and not their game. There's no real way to copy innovation as it happens, you can only do it after the fact, so if you can always stay a step ahead you will have an advantage."

Yeah, right. It's not about being first, it's about being the best. (or the one with the most clout/money) Zynga has the marketing power to flood the app stores with these clones and flush out all other competitors like NimbleBit. Being indy is hard when a company is flat out cloning your games and using their muscle to push you out.

As much as I love Triple Town, I don't see things going SpryFox's way on this. Unless the code itself was stolen, Yeti Town is legit. However, the public shaming given to Zygna recently may have some effect. Then again, they say there's no such thing as negative publicity, so all this attention may end up to be to Zygna's benefit in the long run.

There is a big difference in the Triple Town/Yeti Town case though. The makers of Yeti Town actually had access to all of the source code of Triple Town. Originally, they were going to handle the porting/publishing job from one platform to another (from Facebook to iOS IIRC). Then suddenly they break off all negotiations and suddenly release a game that is little more than a sprite swap. As the story mentions, the items in the in-game store even have all of the same prices in the game currency. I would bet a very large amount of money that the underlying game code is a line by line ripoff. I bet they even left the commented code in there.

That is a difference, but based on my reading of the lawsuit I don't think they're actually alleging straight theft of code (which would be rather clear cut). Rather, they're saying they granted 6waves gameplay access to an NDAed closed beta, and worked with the company in good faith towards a publishing agreement, then had the negotiations broken off suddenly when Yeti Town was released.

That will still probably have bearing on this specific case, but I wanted to keep the article general enough to apply to all sorts of game cloning.

Where are all the trolls now talking about how there should be no patents, no copyright and no intellectual property? This is a small preview of what would come should there be no intellectual property.

Anyone who says "I don't support IP" automatically supports Zynga. And for that you should be ashamed.

Where are all the trolls now talking about how there should be no patents, no copyright and no intellectual property? This is a small preview of what would come should there be no intellectual property.

Anyone who says "I don't support IP" automatically supports Zynga. And for that you should be ashamed.

I'm one of the people who supports a dramatically slashed IP duration/strength, and I do say that Zynga's fine. As the article itself states, there have been plenty of cases in the past where game A copied game B's fundamental gameplay concepts, but used their own art assets and developed the code themselves, and were found to be non-infringing. Fighter's History vs. Street Fighter, Tetris vs. a myriad of Tetris clones, the many, many Pac-Man clones that sprung up...

If you want to argue about whether what Zynga's doing is right, that's a valid line of argument, but if there's no code theft or art asset copying, there's no infringement.

Perhaps a better way for developers to protect themselves from game cloning doesn't involve the legal system at all, but just requires beating the cloners to the punch. "The only way to really stay ahead of this is to be the most innovative kid on the block," Methenitis says. "If you're the one that's constantly coming up with the newer and better ideas, people will play your game and not their game. There's no real way to copy innovation as it happens, you can only do it after the fact, so if you can always stay a step ahead you will have an advantage."

That is complete garbage. A single person or small team game cannot keep up with a large company like Zynga. You spend a large quantity of your life developing a really fun game. You release it, within days it gets buzz. After a week or two Zynga's massive team has put out a prettier clone of your game and you are hosed. All your effort went towards making them even richer. You cannot out innovate that. If you are constantly coming out with newer and better ideas and they are constantly ripping them off with an art upgrade you are the constant loser. This doesn't even cover all the games that are the result of everything just coming together for someone and eureka moments leading to them creating a great game. Maybe that was their life's great achievement, maybe they will have a few more; assuming that every developer is full of endless amazing game ideas, that they can throw away one by one, is stupid. As an ex-game developer I have always told people who are whining about "no completely new games!" to go invent a new color, one that no one has ever seen before. When you have done that (in a game sense) and seen Zynga swoop in and rip you off, you may feel differently about cloning than "copying concept = OK".

Where are all the trolls now talking about how there should be no patents, no copyright and no intellectual property? This is a small preview of what would come should there be no intellectual property.

Anyone who says "I don't support IP" automatically supports Zynga. And for that you should be ashamed.

Even with IP law, this is legal (in theory). IP protects the code and assets. They might attempt to trademark some aspects of the game as well. IP protects the expression but not necessarily the end result.

Where are all the trolls now talking about how there should be no patents, no copyright and no intellectual property? This is a small preview of what would come should there be no intellectual property.

Anyone who says "I don't support IP" automatically supports Zynga. And for that you should be ashamed.

Um, I hate to bring this up, but our current IP system already supports Zynga - that's the point of this article. Might want to find a better strawman to knock down.

Perhaps a better way for developers to protect themselves from game cloning doesn't involve the legal system at all, but just requires beating the cloners to the punch. "The only way to really stay ahead of this is to be the most innovative kid on the block," Methenitis says. "If you're the one that's constantly coming up with the newer and better ideas, people will play your game and not their game. There's no real way to copy innovation as it happens, you can only do it after the fact, so if you can always stay a step ahead you will have an advantage."

That is complete garbage. A single person or small team game cannot keep up with a large company like Zynga. You spend a large quantity of your life developing a really fun game. You release it, within days it gets buzz. After a week or two Zynga's massive team has put out a prettier clone of your game and you are hosed. All your effort went towards making them even richer. You cannot out innovate that. If you are constantly coming out with newer and better ideas and they are constantly ripping them off with an art upgrade you are the constant loser. This doesn't even cover all the games that are the result of everything just coming together for someone and eureka moments leading to them creating a great game. Maybe that was their life's great achievement, maybe they will have a few more; assuming that every developer is full of endless amazing game ideas, that they can throw away one by one, is stupid. As an ex-game developer I have always told people who are whining about "no completely new games!" to go invent a new color, one that no one has ever seen before. When you have done that (in a game sense) and seen Zynga swoop in and rip you off, you may feel differently about cloning than "copying concept = OK".

Unfortunately, that's how all things related to IP protection works right now though. Big companies can usually squash little company to the ground with sheer amount of their resources. You just have to hope that you can get enough money from previous venture to fund the next one or become industry leader. Just like Zynga did with Farmville (although I've been told that was a rip off as well).

So why couldn't Street Fighter 2 use the defense apple did concerning the IPhone/Samsung cases, where it looked enough like the original product to confuse your average consumer?

Because it didn't. The average person would have no problem telling the difference between a Street Fighter II cabinet and a Fighter's History cabinet when they were side-by-side in the same arcade, or even at opposite ends of the arcade. The art style was different, and Fighter's History had cruder animation.

Where are all the trolls now talking about how there should be no patents, no copyright and no intellectual property? This is a small preview of what would come should there be no intellectual property.

Anyone who says "I don't support IP" automatically supports Zynga. And for that you should be ashamed.

Is the fashion industry hurting for talent and money? They don't have any IP protection at all. They don't have patents. They don't have copyrights. They have Trademark, but that is a wholly different story.

The games industry needs no more protection than it currently has. It is doing fine right now. We have more games being made now than ever before. More game developers making money now than ever before. Why would you want to hurt that success?

So why couldn't Street Fighter 2 use the defense apple did concerning the IPhone/Samsung cases, where it looked enough like the original product to confuse your average consumer?

Because it didn't. The average person would have no problem telling the difference between a Street Fighter II cabinet and a Fighter's History cabinet when they were side-by-side in the same arcade, or even at opposite ends of the arcade. The art style was different, and Fighter's History had cruder animation.

Also, the Apple/Samsung case dragged on and on even with an army of lawyers.

It may not be the same thing, but Samsung got beat down over it's Galaxt Tab 10.1 case design being similar to the iPad 2 yet not the same. Game companies can create a game that is almost the same, yet not, and there's no problem with it. There has to be some kind of line somewhere. The more that comes out like this just makes me realize that the system of copyrights and patents is so flawed and broken. It's no wonder why innovation has been so severely crippled.

If you want to argue about whether what Zynga's doing is right, that's a valid line of argument, but if there's no code theft or art asset copying, there's no infringement.

I think a lot of this comes from people not understanding computer games or classing technology as somehow different. If you and I sat down and made the movie Star Battles and we just ripped of Star Wars with slightly different CGI and some slight rewriting say "The Force" is now "The Power", Lucas would have our skins made into chew toys for his dogs. In the game world doing this same thing is fair game..Of course with Zynga being the largest game company in the world, this will not change as they can buy more politicians than a 1 man/small team studio.

Perhaps a better way for developers to protect themselves from game cloning doesn't involve the legal system at all, but just requires beating the cloners to the punch. "The only way to really stay ahead of this is to be the most innovative kid on the block," Methenitis says. "If you're the one that's constantly coming up with the newer and better ideas, people will play your game and not their game. There's no real way to copy innovation as it happens, you can only do it after the fact, so if you can always stay a step ahead you will have an advantage."

That is complete garbage. A single person or small team game cannot keep up with a large company like Zynga. You spend a large quantity of your life developing a really fun game. You release it, within days it gets buzz. After a week or two Zynga's massive team has put out a prettier clone of your game and you are hosed. All your effort went towards making them even richer. You cannot out innovate that. If you are constantly coming out with newer and better ideas and they are constantly ripping them off with an art upgrade you are the constant loser. This doesn't even cover all the games that are the result of everything just coming together for someone and eureka moments leading to them creating a great game. Maybe that was their life's great achievement, maybe they will have a few more; assuming that every developer is full of endless amazing game ideas, that they can throw away one by one, is stupid. As an ex-game developer I have always told people who are whining about "no completely new games!" to go invent a new color, one that no one has ever seen before. When you have done that (in a game sense) and seen Zynga swoop in and rip you off, you may feel differently about cloning than "copying concept = OK".

Except Zynga took 6 months to create their clone, changed it in various ways and are basically selling it to the same market of people who want something new. Games don't really sell that well 6 months after release and in that time markets generally move onto the next big thing.

The market corrects itself in this situation. Zynga doesn't want to grab a few grand by pushing out a crap clone, like angry ninja birds or something, they want to make big dollars and need to either sell to people who already bought the first app (and can obviously tell the difference) or expand it hugely which is incredibly difficult to do. It's just not that much of a business model unless they can make a lot more of it than the original game while only ripping off the concept.

In this specific situation, it sounds like there was a licensing agreement in place, they made the game then decided to rename it and not pay licensing fees. Bit more like the crunchpad than anything else.

Where are all the trolls now talking about how there should be no patents, no copyright and no intellectual property? This is a small preview of what would come should there be no intellectual property.

Anyone who says "I don't support IP" automatically supports Zynga. And for that you should be ashamed.

I support Zynga's right to make games that do not infringe on copyright.

I don't think you are thinking through the implications of a system that would stop Zynga from cloning other games. I guess it'd be fun to play Doom 17, but I'd rather play Half-Life 2 (or 3!!!). You can try to make up rules that only take down the really bad copies, but in the end you will just be handing Corporations a big stick to completely destroy the indie game scene. In your world making a game would be a guarentee ending up in court up against giants like EA and Activision. You'd have to pay out millions in legal fees to just get a game out there.

Where are all the trolls now talking about how there should be no patents, no copyright and no intellectual property? This is a small preview of what would come should there be no intellectual property.

Anyone who says "I don't support IP" automatically supports Zynga. And for that you should be ashamed.

So, under our current IP system, Zynga can do exactly what they're doing without repercussion. Under the reduced IP system supported by the people you're calling out, Zynga would be able to do exactly what they're doing without repercussion.

And somehow, in your head, this equates to an argument against the people you're calling out?

One of the arguments against modern IP is exactly this. Along with constantly eroding traditional fair use rights, criminalizing properly civil matters, pushing the burden of enforcement onto the public, hampering innovation, hassling legitimate purchasers of works, and flying in the face of first and fourth amendment rights, it also doesn't even accomplish what it's purported to: protect the innovators (indie game devs) from moneyed copycats (Zynga).

This is a perfect example of why IP law is so fundamentally broken: literally the only thing it is intended to do - "promote the Progress of Science and useful Arts" - it is failing to do.

Could the game devs apply for business method patents? Why not use the Patent system in the same disgusting ways other companies use them.

Business method patent protects method of doing business. So that wouldn't do anything to protect conceptual ideas of a game.

Of course, the moment patent starts protecting conceptual idea of anything, the entire world will erupt into simultaneous patent infringement lawsuits. For example, every single FPS is rooted upon the idea that you are some dude running around gunning things down with various weapons. I shudder to imagine what would happen if someone patents that idea.

Gaming would be in a pretty shitty state if cloning wasn't par for the course.

Id Software would have the only First Person ShooterNintendo would have the only platformerCapcom would have the only Fighting GameAnd we would all still be playing Ultima Online instead of The Old Republic

As long as nobody is ripping off code and art assets it's all fair game.

Only real difference is that 10 or 20 years ago we didn't have rapid development tools like we do now, so spitting out a clone took time.

Gaming would be in a pretty shitty state if cloning wasn't par for the course.

Id Software would have the only First Person ShooterNintendo would have the only platformerCapcom would have the only Fighting GameAnd we would all still be playing Ultima Online instead of The Old Republic

I'm not a copyright lawyer (I do work with patents), but it seems to me that in the case of Spry Fox, they have a better argument with a business interference kind of argument. The copyright issue is certainly a very nebulous one, but the breach of the NDA along with what can be alleged to be diverting revenue seems like a better case. I think they already have something like that in their complaint so this is kind of a moot point, but there it is. I haven't looked deeply into the facts so nothing is certain, but I hope they win (within a reasonable timeframe), because the facts as they are alleged are quite egregious.

So suing for copyright infringement - those people that clone the games and resell

AND suing end users for copyright infringement - those people duplicating the games and passing them to their friends for free.

Well - the bright side is that they aren't suing for copyright infringement - those people that have good memory recall and can discuss their experiences of the game play after the fact. 'Cause you know the conversations might contain copyrighted content.

This round of lawsuits won't fly - as Apple has been going after Microsoft for 30 years - Pepsi going after Coke for longer. Ford might sue GM because the doors or tires on the cars look too similar. Oh Gawd !

The article doesn't address the flipside of this coin:As a developer I must be constantly aware of how much my idea differs from similar ones. As a related example, look to the Tower Defense genre. How many of those games could be said to be 'clones'? What of the shooter genre, or the platformer?

Is changing my art and a few minor gameplay aspects sufficient to avoid a lawsuit? Am I safe in producing this game or do I have to change elements further? Does my RPG's plot have to change or can I also create an RPG where I travel through time on a quest to destroy an ultimate evil with a katana-weilding hero and a robot sidekick?

Essentially, this is also a minefield for indie content producers, since there's no clear indication of when you've reached "changed enough".

As a solution to the issue, I advocate that you don't need copyright on games. Short of a 1:1 clone of a game, I should be able to reproduce it end-to-end without repercussion. If this were the case, we'd have Chrono Trigger: Resurrection, and a multitude of other fangames and remakes that have been shut down.